This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2110

 

State of Minnesota,

Respondent,

 

vs.

 

Laurence Matthew Sarber,

Appellant.

 

Filed ­­­December 27, 2005

Affirmed

Dietzen, Judge

Dissenting, Randall, Judge

 

Washington County District Court

File No. K7-04-1171

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Mary R. McKinley, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Douglas H. Johnson, Washington County Attorney, Washington County Courthouse, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)

 

John M. Stuart, State Public Defender, Theodore D. Sampsell-Jones, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Dietzen,
Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

Appellant challenges his conviction for first-degree possession of a controlled substance, arguing that the district court (1) violated appellant’s Sixth Amendment right to confrontation by prohibiting appellant from inquiring whether the prosecution’s key witness was charged as a result of the same incident; (2) erred in denying appellant’s motion to suppress drugs seized as a result of an investigatory traffic stop; (3) improperly excluded evidence regarding the alleged involvement of the prosecution’s key witness in a prior drug incident; and that (4) he received ineffective assistance of counsel. 

Because we conclude that the district court did not (1) deny appellant’s Sixth Amendment right of confrontation; (2) err in denying appellant’s motion to suppress evidence; (3) abuse its discretion in excluding evidence regarding the prosecution’s key witness’s involvement in a prior incident; and that (4) appellant was not deprived of effective assistance of counsel, we affirm.

FACTS

 

            In February 2004, police officers Timothy Morning and Don Johnston were on routine neighborhood patrol in the early morning hours when they witnessed a vehicle enter a public park.  The park had closed at midnight, and it was a violation of city ordinance to enter the park at that time.  The officers followed the vehicle.  As the squad car approached the vehicle, it made a wide 180-degree turn and exited the park in the opposite direction.  The officers were unable to run a check on the vehicle’s license number because the vehicle’s license-plate light was out.  The vehicle made sudden and erratic maneuvers as it left the park and drove into a shopping area.  

The officers pulled the vehicle over to investigate.  Officer Morning approached the vehicle on the driver’s side and Officer Johnston approached the vehicle on the passenger’s side.  The driver told Officer Morning his name was Jeremy Corwin but was unable to produce a driver’s license or proof of insurance.  According to Officer Johnston, Corwin asked the officers for assistance in finding his license within the vehicle.  When Corwin’s license was not recovered from the vehicle, he was taken into custody for driving without a license. 

            When Officer Johnston approached the vehicle’s passenger side, he noticed a pearl-handled object located between the vehicle’s passenger seat and central console that he believed to be a knife or gun.  Consequently, he asked the passenger to exit the vehicle and requested identification.  The passenger identified himself as appellant Laurence Matthew Sarber, and was not able to produce a driver’s license or proof of insurance.  When it was discovered that he had two outstanding warrants for his arrest, appellant was placed under arrest and searched. 

            A license plate check on the vehicle revealed that its registered owner was a third party, Joel Ahrens.  The officers had the vehicle towed and impounded in accordance with the department’s impoundment policy.  During the inventory of the vehicle, Officer Johnston removed the pearl-handled knife and discovered a fanny pack located underneath the front passenger’s seat.[1]  While removing the fanny pack, he also noticed an open shaving kit under the seat, which contained several syringes, baggies, and miscellaneous drug paraphernalia.  As a result, the officers called the canine narcotics unit.  The canine sniffed the vehicle and detected an odor of narcotics in the right front console area of the vehicle and underneath the front passenger seat. 

Following the search, it was determined that the fanny pack contained 42.9 grams of methamphetamine powder.  Appellant was charged with first-degree controlled substance offense in violation of Minn. Stat. § 152.021, subd. 2(1) (2004).   Corwin was not charged as a result of the incident.  

Prior to trial, appellant moved to suppress the evidence seized during the search of the vehicle, arguing that the evidence was the fruit of an unconstitutional search and seizure.  After an omnibus hearing, the district court denied appellant’s motion to suppress the evidence found in the vehicle, concluding that: (1) Corwin consented to the search; (2) the search of the vehicle was a lawful search incident to arrest; (3) the search was a valid inventory search conducted according to the department’s impound policy; and (4) the drugs would have inevitably been discovered.

At trial, the central issue was the ownership of the methamphetamine.  Appellant’s theory of the case was that Corwin, not appellant, owned the methamphetamine and placed it in the car.  During opening argument, appellant’s counsel informed the jury that Corwin was not charged in the case.   Appellant’s counsel stated, “[o]ne last thing about Jeremy Corwin, he wasn’t charged.  That is what the evidence will show.” 

Subsequently, the prosecution brought a motion in limine seeking to disallow further questions about whether Corwin was charged in the case and to prevent appellant’s counsel from further arguing that Corwin was not charged.  The prosecutor stated: “I have no trouble if [appellant] wants to argue stake and the outcome and all the factors which bear on credibility and weight of the testimony.  That is standard operating procedure. I don’t object to that.”  Over appellant’s objections, the district court granted the prosecutor’s motion to prohibit the potential testimony, concluding that its potential for prejudice outweighs its probative value.

            Corwin testified that the drugs belonged to appellant.  During cross-examination, appellant’s counsel attacked Corwin’s credibility.  Corwin admitted that he lied to the police regarding several important facts of the incident, including his lies that he owned the car, that he had a driver’s license but could not find it in the car, and that the driver’s license was either in the trunk or the back seat.  Appellant’s counsel then challenged Corwin to admit that he hid the drugs under the passenger seat.  Corwin stated that while he had “lied in the past,” he did not hide drugs under the passenger seat.  He also denied that he had ever hidden drugs from the police.

The state called Officer James Neuenfeldt, a police investigator assigned to the case, to testify about the incident in question.  Appellant’s counsel sought to cross-examine Officer Neuenfeldt about a prior incident in which Corwin was allegedly arrested for possession of drugs.  But during voir dire questioning conducted outside the presence of the jury, Officer Neuenfeldt testified that he was not present at the scene of the prior incident and only heard from other officers that Corwin was arrested for possession of drug paraphernalia and that Corwin tried to hide some packages containing some controlled substances under the seat of the vehicle.  Officer Neuenfeldt thought Corwin was charged with fifth-degree possession of a controlled substance. 

Appellant contended that the proposed testimony regarding Corwin’s prior incident constituted proper impeachment of Corwin.  The prosecution argued, and the district court ruled, that the proposed testimony was inadmissible as hearsay and was barred by Minn. R. Evid. 608(b).

At the trial’s closing, the district court gave the jury the following instruction:

Accomplice Testimony:

You cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime unless the testimony is corroborated by other evidence that tends to convict the defendant of the crime.  Such a person, who could be charged for the same crime, is called an accomplice.  If you find that Jeremy Corwin is a person who could be charged with the same crime as the defendant, you cannot find the defendant guilty of a crime on that testimony unless the testimony is corroborated.

 

            During closing argument, appellant’s counsel vigorously challenged Corwin’s credibility, arguing that Corwin’s testimony was a “huge, huge deal,” that Corwin was not trustworthy, and that Corwin had “too much to lose” by not implicating appellant as the possessor of the drugs.  The jury found appellant guilty as charged, and appellant was sentenced.  This appeal follows.

D E C I S I O N

I.

 

Appellant raises four issues on appeal.  First, appellant claims the district court violated his Sixth Amendment right to confrontation by prohibiting him from inquiring as to whether Corwin was charged for the same incident. 

Appellate courts review questions concerning the admissibility of evidence for an abuse of discretion, even where an appellant has challenged the exclusion of evidence as a violation of constitutional rights.  State v. Gustafson, 379 N.W.2d 81, 84 (Minn. 1985).  But if an evidentiary ruling involves constitutional error, we must look to the basis on which the jury rested the verdict and require a new trial unless the error is harmless beyond a reasonable doubt.  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996); see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986) (holding that the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias is subject to harmless-error analysis).

Appellant claims he was unable to properly reveal Corwin’s bias in testifying for the state because he could not question Corwin or others about why Corwin was not charged as a result of the incident.  Appellant argues that he was unable to reveal Corwin’s bias, i.e., whether Corwin had received a deal from the prosecution for testifying against appellant, or whether Corwin hoped to receive leniency in exchange for his testimony. 

The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to confront and cross-examine witnesses.  Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110 (1974).  Generally speaking, however, the Confrontation Clause guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985) (emphasis in original).  The scope of cross-examination is always subject to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation.  Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435.

“In criminal cases, the Confrontation Clause contemplates a cross-examination in which the defendant has the opportunity to reveal a prototypical form of bias on the part of the witness.”  State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995).  “Bias is a catchall term describing attitudes, feelings, or emotions of a witness that might affect [a witness’s] testimony, leading [the witness] to be more or less favorable to the position of a party for reasons other than the merits.”  Id. (quotation omitted).  Such cross-examination, however, is subject to the district court’s right to reasonably limit questioning.  State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).  When a defendant’s attempted cross-examination aimed at showing bias has been restricted, the issue to be determined is whether the jury has sufficient other information to make a “discriminating appraisal” of the witness’s bias or motive to fabricate.  Lanz-Terry, 535 N.W.2d at 641 (quoting United States v. Hinton, 683 F.2d 195, 200 (7th Cir. 1982), aff’d sub. nom. Dixon v. U.S., 465 U.S. 482, 104 S. Ct. 1172 (1984)).  Beyond that threshold, the extent to which extraneous issues are permitted lies largely within the discretion of the district court.  Id.  The district court may exclude evidence of extraneous issues based on concerns such as harassment, decision-making on an improper basis, confusion of issues, or cross-examination that is repetitive or only marginally relevant.  Id.

The crux of the issue is whether the jury had sufficient information to make a “discriminating appraisal” of Corwin’s alleged bias.  Here, the jury was informed that Corwin was not charged in appellant’s opening statement.  Second, Corwin admitted that he lied to police about his ownership of the car and his driver’s license, yet stated that the drugs belonged to appellant.  Third, the evidence presented to the jury established that there were only two people in the car—Corwin and appellant—and that Corwin had an incentive to state that the drugs belonged to appellant to protect his own interests.  Fourth, the jury was instructed that if Corwin could have been charged with the crime, his testimony must be corroborated.  Finally, in closing argument, appellant’s counsel argued that Corwin had a substantial stake in the outcome of the case, i.e., that he had “too much to lose” by not testifying that the drugs belonged to appellant.

Appellant argues that Davis supports his contention that his Sixth Amendment rights were violated because he was unable to expose Corwin’s bias, i.e., that Corwin was vulnerable to criminal sanction, and thus had an incentive to fabricate his story.  415 U.S. 308, 94 S. Ct. 1105.  In Davis, the United States Supreme Court held that the defendant’s Sixth Amendment rights were violated when the trial court precluded the defense counsel from inquiring into the key prosecution witness’s probationary status as a juvenile delinquent.  Id.at 318, 94 S. Ct. at 1111.  The witness testified to seeing two men standing near a location where a stolen safe was recovered.  Id.at 309, 94 S. Ct. at 1107.  On cross examination, the trial court allowed the defense counsel to ask the witness whether he was biased, but did not allow the defense to ask whether the witness was on probationary status.  Id. at 318, 94 S. Ct. at 1111.  The appellant argued, and the Supreme Court agreed, that the defendant had a right to confront the witness about his probationary status because it may have caused him to make an identification to shift suspicion away from himself out of fear of possible probation revocation.  Id.at 311, 94 S. Ct. at 1108. 

But Davisis easily distinguishable from the facts of this case.  Here, Corwin was not on probationary status, and therefore did not face the potential of probation revocation.  During appellant’s opening statement, counsel stated the source of Corwin’s potential bias, i.e., that he was not charged in the case.  And appellant on cross-examination established that Corwin lied to the police about several important facts of the incident, and was motivated to shift the blame to appellant.  In short, appellant presented significant testimony and argument that Corwin was a liar, could not be trusted, and was the possessor of the drugs.  Here, unlike the Davis jury, the jury was presented with the facts necessary to make a “discriminating appraisal” of Corwin’s alleged bias.  Consequently, appellant’s Sixth Amendment rights were not violated and the district court did not abuse its discretion in ruling such cross-examination inadmissible. 

II.

Next, appellant argues that the district court erred in admitting drug evidence obtained as a result of the search of the vehicle.  Following an omnibus hearing, the district court ruled that the evidence found in the vehicle was admissible.  “When reviewing pretrial orders on motions to suppress evidence, we [] independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  We then independently apply Fourth Amendment law to the facts.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

Appellant argued that the evidence should have been suppressed because the search was an illegal search incident to an investigatory stop.  Respondent argued, and the district court agreed, that the search was constitutional because Corwin consented to the search; and it was a valid search incident to arrest (SITA), or was pursuant to a valid inventory search, or would have been inevitably discovered. 

The United States and Minnesota Constitutions prohibit unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.   A police officer can make an investigatory stop upon showing “that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’”  State v. Pike, 551 N.W.2d 919, 921–22 (Minn. 1996) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)).  The Minnesota Supreme Court has concluded that the principles in Terry apply to traffic stops because routine traffic stops are more analogous to investigatory stops than arrests.  See State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004). 

Both the United States and the Minnesota Constitutions require that the scope and duration of a stop be limited to its original purpose.  Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983); State v. Wiegand, 645 N.W.2d 125, 136 (Minn. 2002).  Police may lawfully stop a vehicle if they have a “particularized and objective basis for suspecting the person stopped of criminal activity.”  Wiegand, 645 N.W.2d at 135.  “The scope of a stop must be strictly tied to and justified by the circumstances which rendered the initiation of the investigation permissible.”  State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999) (alteration in original) (quotations omitted). 

Consent

Appellant first argues that the search was an illegal expansion of the stop because no consent was given to search the vehicle.  Appellant argues that the officers contradicted each other, i.e., Officer Johnston testified that he discovered the methamphetamine while conducting the search authorized by Corwin, but that Officer Morning did not corroborate that consent was given.  But Morning did not contradict Johnston; Morning simply did not indicate, one way or another, whether consent was given to search the interior of the vehicle.  Therefore, the record supports the district court’s finding that consent was given to search the vehicle.

Second, appellant argues that as a matter of law, Corwin’s consent was insufficient to justify the search.  Appellant relies on State v. Fort, 660 N.W.2d 415 (Minn. 2003).  In Fort, the Minnesota Supreme Court concluded that the suspect’s consent, taken alone, is insufficient to permit expansion of a routine traffic stop; the police officer must have a reasonable, articulable suspicion of further criminal activity in order to request consent to expand the stop.  Id. at 418.  The supreme court concluded that testimony in which a suspect seemed nervous, avoided eye contact, and was stopped in a “high drug” area was insufficient to justify expansion of the scope of the stop. Id. at 419.  But Fort is distinguishable.  Fort “does not prohibit consensual searches; rather, it clarifies and emphasizes the need to justify the expansion of the scope of the stop with something that is more than a hunch or a whim.”  State v. Volkman, 675 N.W.2d 337, 341 (Minn. App. 2004).  “Investigative stops, and the expansion of the scope of the stop, are permitted where a police officer can point to a particularized basis for suspecting criminal activity.”  Id.  

            Here, the officers articulated multiple bases for suspecting criminal activity that permitted the expansion of the scope of the stop to a consent search.  In contrast to Fort, the officers did not simply ask to search the vehicle after a routine traffic violation and witnessing nervousness on the part of the suspects.  Fort, 660 N.W.2d at 419.  Officer Johnston testified that he saw a pearl-handled object, which he thought was a weapon, neither the driver nor the passenger produced a driver’s license or identification, neither knew the other by name, and neither had proof of insurance.  And Officer Johnston discovered that there were two outstanding warrants for appellant’s arrest.  In short, the officers articulated sufficient reasons to suspect criminal activity.  Therefore, the district court did not err in concluding the search was a lawful consent search.

Search Incident to Arrest

Additionally, the district court concluded that the search was a lawful SITA.  When the occupant of a vehicle is lawfully arrested, the police may, as a contemporaneous incident of the arrest, search the passenger compartment of the car and any containers found within the passenger compartment.  State v. Robb, 605 N.W.2d 96, 100 (Minn. 2000) (citing New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860 (1981).  This is true even when an officer does not make contact until the person arrested has already left the vehicle.  Thornton v. U.S., 541 U.S. 615, ___, 124 S. Ct. 2127, 2129 (2004).  The purpose of the bright-line SITA exception to the warrant requirement is to allow officers “‘to remove any weapons that the latter might seek to use in order to resist arrest or . . . escape’ and to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” State v. Varnado, 582 N.W.2d 886, 892 (Minn. 1998) (quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034 (1969)).

Appellant argues that the SITA exception does not apply here because appellant had already been arrested when the officers searched the vehicle.  But in Thornton the United States Supreme Court held that the officer may search the vehicle even when its occupant has already been arrested. 541 U.S. at ___, 124 S. Ct. 2127 at 2129.  Here, appellant was arrested, then the vehicle was searched incident to the arrest.  Therefore, the district court did not err in concluding that the officers’ search of the vehicle was a valid SITA.

            The district court also concluded that the motion to suppress should be denied because the evidence was discovered as a result of a lawful inventory search, and that it would have been inevitably discovered.  Because we conclude that two other independent grounds exist for the search, we do not reach these issues.

III.

Next, appellant argues that the district court erred in excluding the proposed cross-examination regarding Corwin’s alleged involvement in a prior drug incident.  The evidentiary rulings of a district court lie within its sound judgment and will not be reversed absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  “Where a defendant complains that the exclusion of evidence was error, an offer of proof provides the evidentiary basis for a trial court’s decision.”  State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).  In particular, a decision on the sufficiency of the foundation for evidence is within the discretion of the trial court.  McKay's Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992) (quotation omitted).  “Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the trial judge will not be reversed absent clear abuse of discretion.” Benson v. Northern Gopher Enters Inc., 455 N.W.2d 444, 446 (Minn. 1990).  Appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.  Amos, 658 N.W.2d at 203. 

Impeachment by Contradiction

Appellant makes two arguments in support of the proposed cross examination of Officer Neuenfeldt.  First, appellant argues that the proposed testimony was admissible to directly impeach Corwin’s testimony that he never hid drugs from the police.  Respondent argued, and the district court agreed, that the proposed testimony was barred by Minn. R. Evid. 608(b).

Minn. R. Evid. 608(b) provides that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’[s] credibility . . . may not be proved by extrinsic evidence.”[2]  Such conduct may be inquired into on cross examination “if probative of truthfulness or untruthfulness.” Id. It lies within the district court’s discretion as to whether evidence is probative of truthfulness.  Id.; see also State v. Clark, 296 N.W.2d 359, 367 (Minn. 1980) (stating that judicial discretion governs whether probative value is outweighed by the risk of undue consumption of time, surprise, or prejudice). 

Appellant further argues that proposed testimony of Officer Neuenfeldt qualifies as impeachment by contradiction.  Impeachment by contradiction is not barred by Rule 608(b).  U.S. v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999).  Impeachment by contradiction occurs when a party introduces extrinsic evidence to show that specific testimony is false because it is directly contradicted by other evidence.  Id.  If evidence is offered only for impeachment purposes, its admissibility depends on whether the evidence relates to a collateral matter. State v. Ferguson, 581 N.W.2d 824, 834 (Minn. 1998).

Here, we conclude that it is unnecessary to reach the issue of whether the proposed testimony is admissible as either impeachment or impeachment by contradiction evidence.  Simply stated, Officer Neuenfeldt’s testimony disqualified him from testifying because he lacked personal knowledge of the subject matter of the testimony.  Where independent grounds for a district court’s evidentiary ruling exist that were not expressly relied upon by the district court, we may consider such grounds.  See State v. Edwards, 485 N.W.2d 911, 915 (Minn. 1992).  “[A] witness may never testify to a matter ‘unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.’” State v. Sobocinski, 395 N.W.2d 128, 130 (Minn. App. 1986) (quoting Minn. R. Evid. 602).  Further, the probative value of testimony may be outweighed by its potential for prejudicial effect.  Minn. R. Evid. 403; State v. Patterson, 329 N.W.2d 840, 841 (Minn. 1983) (observing that the trial court must perform a rule 403 analysis before admitting evidence). 

Officer Neuenfeldt had no personal knowledge of whether Corwin was arrested or hid drugs from the police in the prior incident under Minn. R. Evid. 602.  His knowledge was based on what he had heard from other officers.  Appellant did not meet his burden of providing an adequate offer of proof, i.e., that he could establish the necessary foundation for Officer Neuenfeldt’s testimony.  Amos, 658 N.W.2d at 203.  Therefore, the district court did not abuse its discretion in ruling the proposed testimony of Officer Neuenfeldt inadmissible.

Evidence of Bias and Modus Operandi

Second, appellant argues that Officer Neuenfeldt’s testimony about Corwin’s prior incident was not collateral because it was relevant to show Corwin’s interest in testifying for the state; and it tended to show Corwin’s modus operandi to hide drugs from the police.[3]  But appellant failed to provide the necessary foundation to show that Officer Neuenfeldt had personal knowledge of the prior incident.  Therefore, the district court did not abuse its discretion in denying admission of the proposed testimony.

IV.

In a supplemental pro se brief, appellant argues that he received ineffective assistance of counsel.  Appellant argues that his attorney was ineffective because the attorney did not enforce his request that law enforcement take fingerprint evidence or investigate whether the license plate light on the vehicle was inoperable.  On this record and on applicable law, we find no merit in appellant’s pro se arguments.

Affirmed.

 

 

RANDALL, Judge (dissenting).

 

I respectfully dissent.  My dissent focuses on appellant’s first issue: the district court’s violation of his Sixth Amendment right to confront and cross-examine a witness.  I agree with the majority on appellant’s additional issues on appeal.

Appellant’s attempted cross-examination of Corwin, regarding not being charged with the same incident for the purpose of arguing bias, was improperly restricted.  I conclude that the improper restriction of appellant’s attempted cross-examination of Corwin constituted reversible error entitling appellant to a new trial.

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witness against him.”  Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110 (1974).  The primary purpose of the confrontation clause is the right of cross-examination.  Id.  Cross-examination is essential because it is the “principal means by which the believability of a witness and the truth of his testimony are tested.”  Id. at 316, 94 S. Ct. at 1110.  The cross-examination of a witness provides an opportunity to expose the witness’ motivation in testifying.  Id.  Jurors, being the judge of a witness’s credibility, are entitled to a complete picture, including a defense theory of bias, in order to make an informed decision.  Id. at 317, 94 S. Ct. at 1111. 

Where the accuracy and truthfulness of a witness’s testimony are key elements in a case, the jury should be afforded an opportunity to hear testimony regarding the witness’s potential bias.  See Id. at 317, 94 S. Ct. at 1111.  In Davis, the defense counsel was restricted from inquiring whether the witness was biased, but was unable to specifically question the witness in order to later make an argument as to why the witness might be biased.  Id. at 318, 94 S. Ct. at 1111.  The U.S. Supreme Court found reversible error.  Id.  The majority feels that the probationary status of Davis made the restricted right of cross-examination egregious.  I do not find anything in Davis to indicate that being on probation or parole was an integral part of the Davis court’s strong statement that cross-examination is as constitutional as it is important.  The underlying notion in Davis is the importance of cross-examination.  In Davis, the court highlighted the significance of cross-examination by finding it “paramount” to the state’s interest in protecting the anonymity of juvenile offenders.  Id. at 319, 94 S. Ct. at 1112.

A trial court possesses broad discretion in limiting cross-examination if based on concerns of harassment, prejudice, confusion, repetitive, or marginally-relevant testimony.  See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986).  However, when the witness’s testimony is “crucial” and there’s a “real possibility” that the excluded evidence would have made an impact on the jury, it should be permitted.  Id. at 683, 106 S. Ct. at 1437.

Here, the jury was presented with some information insinuating Corwin’s alleged bias.  But, cross-examination of Corwin was limited.  Appellant was prohibited from inquiring as to whether Corwin was charged for the same incident.  I do not understand that ruling.  That was fair cross-examination and no more likely to confuse the jury than the evidence the state put in.  Corwin’s testimony is crucial since only he and appellant were present in the vehicle prior to being pulled over.  The fact that Corwin was not charged for the incident where the facts were inconclusive as to either Corwin or appellant could be charged for possession, means the prosecution chose to charge appellant rather than Corwin.  Appellant should have been allowed to argue to the jury the reasonable inference that the leniency shown Corwin might make him prone to bolster the state’s position.  For the constitutional right to cross-examine on the implications of bias, the cross-examiner does not have to prove positive of overt bias.  The cross-examiner is allowed to bring out facts from which a reasonable inference could be drawn.  The prosecutor will have a chance to rehabilitate the witness.

The majority points out that the jury was given some basis to judge Corwin’s credibility.  I do not disagree.  But what I point out is, the Sixth Amendment gives appellant the right to effective cross-examination through his attorney, and that right cannot be trumped by a ruling that you do not get your normal constitutional right to a thorough cross-examination because other favorable evidence is on the record.  Put another way, the better practice is to leave the amount of cross-examination to defendant’s defense attorney, and then the court does not have to gratuitously decide if a cross-examination should be limited because the jury has other evidence.

I dissent and would reverse the conviction and remand for a new trial, permitting appellant to properly cross-examine the witness for the purpose of presenting to the jury Corwin’s potential bias.